Volume 1 — Kansas Court of Appeals Reports

<p>1. Special Findings — Evidence—Review. Where an action has been tried by a court without the intervention oí a jury, and the court makes special findings, and such findings are supported by .a preponderance of the testimony, a reviewing court will not order that the findings be set aside, nor that a new trial be granted.</p> <p>2. Principal and Agent — Knowledge of Agent. Whatever the agent knows concerning a matter connected with his agency, his principal is bound to know. And knowledge of an agent, acquired previous to the agency, but actually present while acting for his principal in a particular matter or transaction, will be deemed notice to the principal.</p>

<p>1. Surety — Material Change of Contract. A surety has a right to stand.upon the very terms of his contract, and if a material variation is made therein, without his assent, he is discharged.</p> <p>2. --- When Released from Li,ability. One who becomes security for the payment of a debt evidenced by three notes due, respectively, in one, two, and three years, is released from liability, if, without his assent, the principals on the notes and the creditor payee agree, upon sufficient consideration, that upon the failure to pay either of said notes, they all shall become due and payable, and if, pursuant to such agreement, an action is brought within two years against the principals and the surety on the three notes.</p>

<p>Memorandum. — Error from Dickinson district court; M. B. Nicholson, judge. Action by S. Steel-smith against the Union Pacific Railway Company to recover for medical services. Judgment for costs having been rendered against the plaintiff, he brings the case to this court.</p>

<p>Memorandum. — Error from Dickinson district court; M. B. Nicholson, judge. Action by Americus V. Jewett against Thomas H. Malott and "others to recover on a promissory note. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Demurrer to Evidence, When Overruled. A demurrer to the evidence of the plaintiff should be overruled when the evidence fairly tends to prove the allegations of the petition.</p> <p>2. Insurance Policy — Loss—Matter of Defense. In an action to recover on a policy of fire insurance for a loss by fire, the failure on the part of the insured to comply with a demand, made in accordance with the conditions of the policy, by the insurer for an appraisement of the amount of loss, must be alleged and proved as a matter of defense.</p> <p>3. Disagreement as to Loss, Insurer Must Allege and Prove. Where the right to demand such appraisal exists only “in the event of disagreement as to the amount of loss,” the insurer, relying for a defense to an action on the policy to recover for the loss, upon the failure of the insured to agree to an appraisement when one was demanded, must allege and prove that there was an actual disagreement as to the amount of the loss.</p>

<p>Memorandaum. — Error from Olay district court; R. B. Spilman, judge. Action by the Barnard & Leas Manufacturing Company against the Union.Pacific Railway Company. Judgment for the plaintiff. The defendant company brings the case to this court.</p>

Memorandum. — Error from Mitchell district court; Cyrus Heren, judge. Action by Abraham Ringer on a bond given by Henry Davis and another. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Cloud district court; F. W. Sturges, judge. Action by James M. Hagaman and others against the city of Concordia. Judgment for plaintiffs ; defendant brings error.

<p>Memorandum. — Error from Republic district court; F. W. Sturges, judge. Action on a fire-insurance policy by M. E. and I. B. Hall, partners, against the German Insurance Company, of Freeport, 111. Plaintiffs had judgment, and the defendant company brings the case to this court.</p>

<p>Memorandum. — Appeal from Jewell district court; Cyrus Heren, judge. Prosecution brought by The State against Neis Lindgrove, charging him with a violation of the prohibitory liquor law. Judgment for The State. The defendant appeals.</p>

Memorandum. — Error from Smith district court; Cyrus Heren, judge. Action by W. F. Groesbeck and another against E. S. Barger and others, to enforce a mechanic’s lien. From the judgment plaintiffs bring error.

Memorandum . — Error from Ellsworth district court; W. G-. Eastland, judge. Action on a contract by R. V. Morgan against the Kanopolis Land Company. Prom the judgment rendered, the defendant brings error.

<p>Memorandum. — Error from Diclrinsou district court; M. B. Nicholson, judge. Action by Henry A. Bell agaiiist the Chicago, Kansas & Western Railway Company to recover damages for personal injuries. Plaintiff had judgment, and defendant brings error.</p>

Memorandum. — Error from Republic district court; F. W. Sturges, judge. B. F. Surface, as administrator, appealed to the district court from an order of the probate court on submission of final report, and brings error from a judgment on the application of Sarah E. Douglas for trial of questions of fact as to the performance of the duties as administrator.

Memorandum. — Error from Geary district court; James Humphrey, judge. Action brought by Harriet Blades against the city of Junction City, to recover damages for certain bodily injuries. Judgment for plaintiff. The defendant brings the case here.

Memorandum. — Error from Mitchell district court; Cyrus Heren, judge. Action by W. L. Ellwood against Enos Halbert and others to recover upon a promissory note. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Appeal from Saline district court; R. F. Thompson, judge. A. C. Wait having been found guilty in a police court of violating an ordinance, the district court, on appeal, quashed the complaint, and plaintiff, the city of Salina, appeals.

<p>Memorandum. — Error from Atchison district court; Robert M. Eaton, judge. Action in replevin by Albert W. Moore against Frank E. Shaw, as sheriff. Defendant had judgment, and plaintiff brings error.</p>

<p>1. Insurance Policy — Cause of Action not Stated. The petition fails to state a cause of action, in an action brought upon a policy of fire insurance to recover for a loss, when it shows upon its face that the action was not pommeneed within the time limited by the policy.</p> <p>2. Appeal — Error Apparent from the Record. It is error to render a judgment for the plaintiff upon a petition which does not state a cause of action in his favor. The error, being apparent from the record and inherent in the judgment, may be taken advantage of on appeal, without exceptions or motion for a new trial in the district court.</p>

Memorandum. — Error from Shawnee circuit court; J. B. Johnson, judge. Action by Christian Grosch against the Brush Electric Light and Power Company. Plaintiff had judgment, and defendant brings error.

<p>Mechanic’s Lien — City Building. The mechanic’s lien law is sufficiently comprehensive to authorize a lien in favor of a material man who furnishes materials for the erection of a public building for a city of the first class. (Wilson v. School District, 17 Kas. 104, and other cases, followed.)</p>

<p>Memorandum.— Error from Wyandotte district court; O. L. Miller, judge. Action by Michael Reardon against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff; defendant brings error.</p>

Memorandum. — Error from Wabaunsee district court; William Thomson, judge. Action by J. H. Verity & Co. against Joseph Paulucci and W. C. Paulucci. Judgment for plaintiffs, and defendant Joseph Paulucci brings error.

Memorandum.— Appeal from Wyandotte court of common pleas ; Thomas P. Anderson, judge. Prosecution for a violation of the prohibitory liquor law. The defendant, John R. Conley, appealsirom a judgment against him on February 27, 1895.

<p>1. Legal Process — Abuse by Officer. An officer forfeits the protection of the law which the proper execution of legal process affords, and becomes a trespasser ab initio, when he is guilty of such an improper and illegal exercise of authority under it as warrants the conclusion that he intended from the first to use his legal authority as a cover for his illegal conduct.</p> <p>2. Replevin — Plaintiff, When not Liable for Damages. A plaintiff in replevin, who does not direct or participate in a malicious abuse of the writ of replevin by the officer in whose hands it is placed for service, is not liable for the damages sustained by reason of the unlawful acts of the officer.</p> <p>3. Trespass — Abuse of Process — Subsequent Irregularities. In an action of trespass, in which the alleged trespass consists of an abuse of legal process, subsequent irregularities in the action in which the process is issued, for which the party proceeded against is not responsible, cannot be considered for the purpose of characterizing the previous act.</p>

<p>1. Injury to Employe — Assumption of Risk. A servant may rely upon the duty of a master to furnish him with reasonably safe tools and machinery for his use, and should not be held to assume all risks of danger as soon as defects in such tools or machinery are discovered. After knowledge of defects which may render the employment dangerous, unless the danger is imminent and obvious, the servant may continue in his employment a reasonable time, in reliance upon a promise of the master to repair.</p> <p>2. Instructions, How to be Considered. Instructions of the court must be taken together, and considered and construed as a whole.</p> <p>3. Anxiety oe Mind — Element of Damage. Pain and anxiety of mind, in an action for personal injury, is a proper element of damages when connected with physical pain or injury, and is the direct result of the injury.</p> <p>4. Judgment, When Affirmed. Where it appears from an examination of the entire record that no prejudicial error was committed by the trial court, the judgment will be affirmed.</p>

Memorándum. — Error from Wyandotte district court; 0. L. Miller, judge.. Action by D. J. Griest and Robert Garrett against Jerome Meixell, to enforce a mechanic’^ lien. Plaintiff recovered judgment, and defendant brings the case to this court.

Memorandum. — Error from Shawnee circuit court; J. B. Johnson, judge. Action by Jacob Stitt against the Brush Electric Light and Power Company. Plaintiff had judgment, and defendant brings error.

Memorandum. — Error from Pottawatomie district court; William Thomson, judge. Action in replevin by E. M. Trumbo against Charles E. Morris, as sheriff. ' Judgment for plaintiff. Defendant brings the case here.

<p>Memorandum. — Error from Doniphan district court; R. 0. Bassett, judge. Actign on appeal from probate court by Benjamin F. Heaston, as administrator of the estate of Jacob Heaston, deceased, against Jacob Miller, and Jacob Miller, as guardian of Elizabeth Miller, and Jacob G. Heaston. Judgment for defendants. Plaintiff brings the case here.</p>

Memorandum. — Error from Pottawatomie district court; William Thomson, judge. Action upon a promissory note. Judgment for plaintiff, the First National Bank of Westmoreland, Kansas. The defendants, the First National Bank of Frankfort, Kansas , and P. P. Thomas, bring the case here.

<p>1. Supreme Court — Transfer of Case to Another Court. A party has no such vested right to a hearing by the supreme court of a case pending therein as will prevent the legislature from providing for a transfer of such case to another competent appellate tribunal.</p> <p>2. Occupying-Claimant Law, to be Equitably Construed. The occupying-claimant law is based upon the broadest equity and must be construed so as to effect an adjustment of the rights of the respective parties in the most equitable manner; the unsuccessful occupying claimant should be compensated for the full added value which his lasting and valuable improvements give to the land at the time such value is assessed, and he should be charged only with value of the rents and profits of the land exclusive of the improvements.</p> <p>3. Invalid Tax Deed — Portion of Taxes tobe Bepaid. When the defendant in an action of ejectment bases his claim of title on a. tax deed which is adjudged invalid, and he is entitled to be repaid the taxes paid by him, as well as to have the benefy; of the occupying-claimant act for his improvements, only such portion of the taxes paid should be repaid to him as were levied upon the. assessed valuation of the land without the improvements for-which compensation is made.</p>

<p>1. Ejectment — Occupying-Claimant Law — Measure of Liability. The defendant in an action of ejectment who is defeated in his claim of title to real estate, and who is entitled to the benefit of the occupying-claimant law for his lasting and valuable improvements, is liable, under that law, for only the value of the rents and profits which he may have received from the land without his improvements.</p> <p>2. Supersedeas Bond — Liability of Sureties. When a supersedeas bond is executed by sureties on behalf of the defendant in such an action, conditioned for the payment by him of the value of the use and occupation of the real estate, pending an appeal to the supreme court on a question of taxes, the sureties are liable on the bond only for the value of the use and occupation of the land without the improvements of their principal, when, during the- time of such use and occupation, there had been no assessment or payment of the value of the improvements, and proceedings under the occupying-claimant law had not been delayed or prevented by the defendant or his sureties.</p> <p>3. Valid Bond — Sureties Bound. A supersedeas bond signed by the sureties alone, the principal not joining therein, is valid and binding as to the sureties.</p>

Memorandum. — Error from Doniphan district court; R. C. Bassett, judge. Action in ejectment by Robert McPherson against Elmer Abbey..' Judgment for plaintiff. Defendant brings the case here.

Memorandum.— Original application by L. A. Petrie for a writ of habeas corpus.

<p>1. Insurance — Action on Policy — Limitation. The general rule is that, in the computation of time from an act done, the day on which the act is done will be excluded whenever such exclusion will save a forfeiture.' Following this general rule, held, where a loss occurs September 15, 1889, under a policy of insurance containing a clause limiting the time within which an action may be maintained to six months “after loss or damage shall occur,” and an action is commenced March 15, 1890, upon said policy, said action can be maintained.</p> <p>2. Occupation op Premises — Homestead—Peed of Assignment. Where a resident of this state, who is the head of a family, owns two houses located upon a lot and one-half of ground, containing less than one acre, within the limits of a city, and occupies one of the houses, with his family, for living and sleeping purposes, and the other for cooking and kitchen work, and also cultivates the grounds for his family, at the time he joins in a deed of assignment with a partner for the benefit of the creditors of said firm, held, that both of said houses constitute a part of the homestead of the debtor and his family, and no part of said premises is transferred to the assignee under said deed of assignment.</p> <p>3. Premises, Not Vacant or Unoccupied. Where a house, built for dwelling purposes, is used by the owner thereof for cooking and general work in connection with an adjacent house where said owner and his family lodge and eat, such house, so used for cooking and general purposes, is not “vacant or unoccupied” within the meaning of a clause in an insurance policy which provides that said policy shall become void if the house become “vacant or unoccupied.”</p> <p>4. Proops op Loss — Waiver. The denial of liability by a general adjuster sent by an insurance company to investigate losses under two policies issued by said company is the denial of the company, and waives the filing of proofs of loss.</p>

<p>Memorandum.— Error from Franklin district court; A. W. Benson, judge. Action by J. W. Rankin against J. N. Bell, as sheriff, to recover the value of certain goods. Judgment for plaintiff. The defendant brings the case to this court.</p> <p>The statement of the case, as made by Dennison, J., is as follows :</p> <p>This was an action brought in the district court of Franklin county, by J. W. Rankin, this defendant in error, as plaintiff, against J. N. Bell, this plaintiff in error, as defendant, in which Rankin sought to recover the value of certain goods, which the said Bell, as sheriff of Franklin county, had taken under an order of attachment issued by the clerk of the district court against the property of J. H. and J. E. Ran-tin, partners, doing business under the firm name of Rankin Bros., at Wellsville, Kas., in a certain action then pending in said court, wherein J. C. Glenn was plaintiff and said Rankin Bros, were defendants. It appears from the record in this case that this defendant in error, J. W. Rankin, and his two sons, J. H. and J. E. Rankin, about the 20th of March, 1888, traded property and gave notes for a stock of general merchandise that was then situated in Westphalia, Kas., and under the partnership name of Rankin Bros, they conducted the said business until the 3d day of January, 1889, when the said J. W. Rankin sold his interest in the business to his two sons, J. H. and J. E. Rankin, and as part of the purchase-price for his interest in said goods he took from J. H. and J. E. Rankin their promissory note for $3,000, due in one year, and drawing 10 per cent, interest from date. On the 24th day of June, 1889, J. H. and J. E. Rankin executed a new note to their father, J. W. Rankin, due January 1, 1890, at 10 per cent, interest from date, and to secure the said note they executed a chattel mortgage upon their general stock of merchandise to the said J. W. Rankin, which said mortgage was duly filed in the office of the register of deeds of Franklin county, Kansas. The said J. W. Rankin made S. W. Rankin, another of his sons, his agent to look after his interest under the mortgage. The said chattel mortgage contained the following clause :</p> <p>‘ ‘ But said firm is authorized, during the currency of this mortgage, to continue their business at said store in the usual course, selling said goods at retail at the current prices; but they are to keep a strict account of said sales and pay out the proceeds of the sales to said J. W. Rankin in payment of the debt hereby secured, less the necessary expenses of carrying on said business as aforesaid, to which end they are authorized to buy such goods from time to time as may be necessary to keep such stock in a salable condition out of the said proceeds; but such new goods so purchased shall be subject to said mortgage the same as the others.”</p> <p>And also the further clause :</p> <p>“And it is further agreed that, in case of a sale or disposal or attempt to dispose or sell of the goods and chattels hereby mortgaged, or a removal or attempt to remove the same from the county aforesaid, or an unreasonable depreciation in value, or if from any cause the security shall become inadequate, or the party of the second part shall deem himself insecure, then aud thenceforth it shall be lawful for the party of the second part, his executors, administrators and assigns, or his authorized agent, to enter upon the premises of the said party of the first part, or any other place or places wherein said goods and chattels aforesaid may be, to remove and dispose of the same, and all the equity of redemption of said party of the first part, at public auction or private sale, to the person or persons who shall offer the highest price for the same, and out of the avails thereof to retain the full amount of said obligation with interest thereon, according to the conditions thereof, together with all reasonable costs and expenses attending the same, rendering to said party of the first part or his legal representative the surplus money, if any there be, anything herein to the contrary notwithstanding.”</p> <p>On the 3d day of July, 1889, S. W. Rankin, as the agent of his father, took possession of the stock of goods under the mortgage and was proceeding to sell the same, when several attachments were levied upon said goods as the property of said Rankin Bros.,, the second one being the one of J. C. Glenn, upon which this suit is based. After this second attachment had been levied upon the goods, S. W. Rankin,. acting as the agent of bis father, made a conditional trade of said goods to T. W. Collingswoi’th'for western land, the condition of said trade being that, if said Collingsworth failed to hold the goods, said Rankin would reconvey to him the land given for the goods. Other attachments were levied upon the goods as the property of said Rankin Bros., until they were all exhausted, leaving nothing for J. W. Rankin or for T. W. Collingsworth. The petition of this defendant in error in this case alleges unlawful conversion of the goods. The answer of this plaintiff in error is a general denial, and an allegation from the said Bell that he was the sheriff of Franklin county, Kansas, and took the goods by virtue of an order of attachment issued in.the case of J. C. Glenn v. Rankin Bros., and that the goods belonged to Rankin Bros., and that the pretended claim of J. W. Rankin was a sham and pretense, and was held by him for the purpose and with the intent to assist the said Rankin Bros, to cheat and defraud their creditors, and to hinder and delay them in the collection of their just claims against the Rankin Bros., and that the said Rankin Bros, were then, insolvent and had absconded. The reply of this defendant in error was a general denial.</p> <p>The jury found generally for the plaintiff in the sum of $810.68, and found specially that the mortgage was executed by Rankin Bros, to J. W. Rankin in good faith, and was a valid mortgage given for a valuable consideration, and that the mortgagee took possession of the goods under the mortgage. They also found that the value of the merchandise taken under the mortgage was $4,900, and the value of the goods left in the possession of the mortgagee, after the levy of attachment of the case of Glenn v. Rankin Bros., was $4,349.32 ; that the trade between Collingsworth and Ranldn was a conditional one; that, at the time the mortgagee took possession of the goods, Rankin Bros, were owing him $3,008, and at the commencement of this suit were owing him $2,846.50.</p>

Memorandum.— Error from Elk district court; M. G. Troup, judge. Action by the board of county commissioners of Elk county against R. W. M. Roe. Judgment for plaintiff, and defendant brings error.

Memorandum. — Error from Miami district court; John T. Burris, judge. Action by Margaret H. Karr against Milton E. Karr and Flora E. Burns. Judgment for defendant Burns ; plaintiff brings the case to this court.

Memorandum. — Error from Labette district court; J. D. McCue, judge. Action by Mary 0. Lane against Gilbert M. Woodruff and wife. Judgment for defendants, and plaintiff brings the case to this court.

<p>1. Note, Given for Land Purchased — No Vendor's Lien. S., as . grantor, made and delivered a deed conveying certain real estate to M., and took the promissory note of M. as a part consideration for the land conveyed, and the note was signed by M., his wife, and another party as surety thereon, and the note contained a statement that it was given in consideration of part purchase of the real estate, describing the same. Held, That the note does not create a lien upon the lands conveyed.</p> <p>2. Mortgage — Foreclosure—Subrogation. Where a party purchases lands that are incumbered by mortgage, and after he takes possession thereof pays to the mortgagee part of the money secured by the mortgage, and other parties are interested in the land, upon a foreclosure of the mortgage for the unpaid balance due, the purchaser who has paid part of the money due under the mortgage is entitled to be subrogated to the rights of the mortgagee so far as the amount he has paid to protect the land against the lien of the mortgage.</p>

Memorandum. — Error from Wilson district court; L. Stillwell, judge. Replevin by Amos Stebbins against A. J. Mannen, as sheriff of Wilson county. Judgment for plaintiff. Defendant brings the case here.

Memorandum. — Error from Bourbon district court; J. S. West, judge. Replevin by John R. Young against J. H. Bell and others. Defendant had judgment, and plaintiff brings the case to this court.

<p>Memorandum. — Error from Labette district court; J. D. McCue, judge. Action by Anna Youard against Henry C. Rouse, receiver. Plaintiff recovered judgment, and defendant brings the case to this court.</p> <p>The statement of the case, as made by Johnson, P. J., is as follows :</p> <p>On the 13th day of January, 1890, Anna Youard filed a bill of particulars before J. D. Scott, justice of the peace in and for the city of Parsons, in Labette county, Kansas, in which she stated as her cause of action that George A. Eddy and H. C. Cross were the duly-appointed, qualified and acting receivers of the Missouri, Kansas & Texas Railway Company, and as such are and at the times hereinafter mentioned were in possession and control of and engaged in operating the Missouri, Kansas & Texas railroad; that in the month of July, 1889, they unlawfully and negligently transported to and unloaded, drove, fed and littered at their stock-yards near Parsons, in Labette county, Kansas, cattle afflicted with Texas, splenic or Spanish fever, a large number of which died at said stockyards of said disease ; that said defendants negligently drove said cattle into said stock-yards in said county, and negligently allowed the same to remain and die in said stock-yards of said contagious disease, and thereafter negligently gathered up the litter in said stock-yards, infected by said cattle with said disease, and placed the same upon and near the pasture of plaintiff, in which her cattle were feeding, by reason whereof four cows owned by the plaintiff, without any negligence on her part, became infected with said disease and died, to her damage of $200 ; and hér pasture became dangerous and unfit for use for the pasturage of cattle, and she was deprived of the use thereof, to her damage of $25 ; and prays judgment for the sum of $225, her damages, and $50 as attorney’s fees for prosecuting her action.</p> <p>Defendants were duly notified of the filing of said bill of particulars and the pendency of said action by service of summons, and said cause was tried before said justice of the peace, and resulted in a judgment in favor of the plaintiff below; and the case was taken to the district court of Labette county on appeal, and was tried in the district court by a jury. The jury returned a verdict in favor of the plaintiff below, and made and returned with their general verdict special findings of fact. A motion was made by defendants below for judgment against the plaintiff on thé special findings of fact, notwithstanding the general verdict. The motion was overruled and excepted to. A motion for a new trial was filed, and overruled, and excepted to. Judgment for plaintiff below on verdict of the jury, and excepted to, and the case filed in the supreme court for review. Since the rendition of the judgment in the district court and the filing of the case in the supreme court, the said George A. Eddy and H. C. Cross, receivers, have both died, and Henry C. Rouse has been duly appointed by the United States circuit court receiver de bonis non of the Missouri, Kansas & Texas Railway Company, and the action has been revived in the name of said Henry C. Rouse, receiver de bonis non. The case was duly certified by the supreme court down to this court for review, and both parties have appeared in this court and filed briefs and argued said case before the court.</p>

<p>Memorandum.— Error from Bourbon district court; J. S. West, judge. Replevin by Paul Fisher against J. H. Bell and others. Plaintiff had judgment, and defendants bring the case to this court.</p>

Memorandum.— Original application by Arista Walker for a writ of habeas corpus. Granted June 4, 1895.

Memorandum. — Error from Miami district court; Jóhn T. Burris, judge. Action on a note and mortgage by Isaac Ryder and others, partners under the name of Ryder, Shane & Hyman, against Hannah Lee. Plaintiffs recovered judgment, and defendant brings the case here.

Memorandum. — Error from Franklin district court; A. W. Benson, judge. Action by the city of Ottawa against William H. Clark. Judgment for plaintiff, and the defendant brings the case here.

Memorandum.— Error’ from Montgomery district court; J. D. McGue, judge. Replevin by C. F. Elerick against W. M. Aldridge. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum.— Error from Osage district court; William Thomson, judge. Proceedings by motion for the amercement by J. W. Rice against Simon Reese, as sheriff. From a judgment for mover, defendant brings error.

Memorandum.— Error from Miami district court; John T. Burris, judge. Action brought by the Crane Bros. Manufacturing Company against J. H. Whetstone and others to recover for certain merchandise. Judgment for the plaintiff company. The defendants, J. H. Whetstone and two others, bring the case here.

Memorandum. — Error from Neosho district court; L. Stillwell, judge. Action by Mary E. Greenwood against the Missouri, Kansas & Texas Railway Company to recover damages for the alleged carelessness and negligence of the defendant company in causing the death of her husband. Judgment for plaintiff. The defendant brings the case to this court.

Memorandum. — Error from Anderson district court; A. W. Benson, judge. Action by Edson Goit against Lin J. Clark and Agnes M. Clark, as executrices of W. P. Clark. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Bourbon, district court; S. H. Allen , j udge. Action by Peter Redinger against Henry C. Rouse, as receiver of the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant brings the case to this court. The statement of the case, as made by Johnson, P. J., is as follows : This action was commenced originally before William Margrave, a justice of the peace in the city of Fort Scott, Bourbon county, Kansas.

Memorandum. — Error from Neosho district court; L. Stillwell, judge. Replevin by Luther Hill against S. L. Van Sandt. Defendant had judgment, and plaintiff brings the case to this court. The statement of the case, as made by Dennison, J., is as follows : This is an action of replevin brought by Luther Hill, as plaintiff, against S. L. Van Sandt, as defendant, to recover a quantity of furniture, and for damages for wrongful detention of the same.

Memorandum. — Error from Osage district court; William Thomson, judge. Action by James O’Melia against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for bodily injuries. Judgment for plaintiff. Defendant brings the case here.

Memorandum. — Error from Coffey district court; Charles B. Graves, judge. Action brought by H. B. Harding against the Bank of LeRoy to recover money. Judgment for plaintiff. The defendant brings the case to this court.

Memorandum. — Appeal from Coffey district court; William A. Randolph, judge. John Stockwell was convicted of the violation of a certain city ordinance, and appeals to this court.

<p>Memorandum. — Error from Miami district court; John T. Burris, judge. Action in ejectment by Enoch O’Brien against George D. Wesner. Plaintiff had judgment, and defendant brings the case to this court.</p>

<p>Memorándum. — Error from Labette district court; J. D. McCue, judge. Action to recover damages for the wrongful taking and detention of personal property, by Elizabeth E. Willey against W. P. Wilson, as sheriff, and the First National bank of Oswego, Kas. Plaintiff had judgment, and defendants bring the case to this court.</p>

Memorandum. — Error from Reno district court; L. Houk, judge. Action by James F. Redhead & Co. against J. W. Ballinger and another. From certain orders entered, defendants bring error.

Memorandum. — Error from Lyon district court; Charles B. Graves, judge. Action for an injunction by S. L. Sargent against Joab Bridges and wife. Plaintiff liad judgment, and defendant brings error.

<p>1. Instructions, Sufficient. The instructions in this case examined, and held fairly to present the law under the evidence in this case.</p> <p>2. -No Available Error. As a general rule, where the court properly instructs the jury, except that it omits some matter which might properly be given, no available error is committed, unless the court has been properly requested to instruct in reference to such matter. Following The State v. Peterson, 38 Kas. 211.</p>

<p>Memorandum. — Error from Kingman district court; S. W. Leslie, judge. Action on an official bond by Philando Armstrong against A. B. Moore and others. There was a judgment for defendants on a demurrer to the petition, and plaintiff brings error.</p> <p>The statement of the case, as made by Johnson, P. J., is as follows :</p> <p>This action was commenced by Philando Armstrong against A. B. Moore, as treasurer of Kingman county, and the other defendants as sureties on the bond of said treasurer. The plaintiff alleged in his petition that on the 1st day of September, 1888, the defendant, Benjamin F. Frazier, executed a certain promissory note to the Kansas Loan and Investment Company for the sum of $700, due five years' after date, with interest at 7 per cent, per annum if paid according to the tenor and effect thereof, with coupons attached, but if not so paid, to' draw 12 per cent, per annfim ; that said note was assigned by the Kansas Loan and Investment Company to the plaintiff, Armstrong, before due. A copy of the note is attached to the petition. Plaintiff also alleges the execution of a mortgage on certain real estate in Kingman county, Kansas, to secure the payment of the note ; that no part of the principal or interest has ever been paid, and that the same is due. He also alleges that in March, 1890, the Hutchinson, Oklahoma & Gulf Railway Company, a company authorized to construct a road from Hutchinson to Oklahoma, on the 1st day of March, 1890, instituted condemnation proceedings to condemn its right-of-way through Kingman county ; and in laying out the route of said railway through Kingman county and condemning the right-of-way it took and appropriated the entire tract of land mortgaged to secure the payment of said note ; that in the condemnation of said land it was appraised at $1,250, and that on the 10th day of May, 1890, the railway company, under said condemnation proceedings, paid to the defendant, A. B. Moore, who was then the treasurer of Kingman county, Kansas, the full appraised value of said land, to wit, $1,250 ; and that on the same day the money was deposited with the treasurer, who paid it out to the defendant, Benjamin F. Frazier, on account of being the owner of said land, and that at the time of the payment of Moore to Frazier, Moore had full notice and knowledge of the mortgage of the plaintiff to said land. The petition further alleges that Moore was the duly-elected, qualified and acting treasurer of Kingman county, and that the other defendants were sureties on his bond as treasurer of said county; that-said bond was duly approved and filed with the county clerk of Kingman county, and that said Benjamin F. Frazier is and was on the 10th day of May, 1890, insolvent. Plaintiff prays judgment against all the defendants for the sum of $700, with interest according to the terms of the note. To this petition the defendant interposed a demurrer, on the ground that the petition does not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and, plaintiff electing to stand on his petition, judgment was rendered against him for costs of suit. A motion to set aside the judgment and grant a new trial was filed and overruled by the court, and excepted to.</p>

Memorandum. — Error from Chase district court; Frank Doster, judge. Action by John C. Thompson against Alexander Russell. Judgment for plaintiff, and defendant brings error. The statement of the case, as made by Dennison, J., is as follows : * There has been filed in this court a petition in error in the above-entitled case. Attached to the petition in error are some papers which were filed April 11, 1891, by George M. Hayden, clerk of the distinct court.

Memorandum. — Error from Marion district court; Frank Doster, judge. Action by F. E. Dwelle and another against John C. Dwelle on a contract. Plaintiffs recovered judgment, and defendant brings error.

<p>Memorandum. — Appeal from Sumner district court; J. A. Burnette, judge. An information was filed against William J. Newbold- for having neglected to keep an account of fees as register of deeds. The information was quashed, and The State appeals.</p>

<p>Memorandum.— Error from Greenwood district court; C. A. Leland, judge. Action by George E. Thrall against William Fairbrother. From the judgment in the district court, on an appeal from the justice, plaintiff brings error.</p> <p>The statement of the case, as made by Dennison, J., is as follows :</p> <p>This is a case in which the plaintiff in error, George E. Thrall, brought suit in justice’s court upon two promissory notes of $50 each and interest. Judgment was rendered in justice’s court in favor of the plaintiff, and an appeal taken to the district court. The case was tried in the district court upon an agreed statement of facts, in which it is admitted that the note set forth in the first cause -bf action was given in renewal of the note set forth in the second cause of action; that at the time of the execution of the note set forth in the first cause of action the note set forth in the second cause of action was taken up, marked “Paid,” and surrendered to this defendant in error, but the only payment of it was the execution of the note set forth in the first cause of action. It is also admitted that the note set forth in the second cause of action was given for a valuable consideration. The petition of the plaintiff below alleges that the note set forth in the second cause of action was dated November 17, 1888, and executed and delivered to the plaintiff in error upon that day, and was for $50 and due three months after date, and to draw interest at the rate of 12 per cent, after maturity. The bill of particulars in this case was filed in the justice’s court on the 24th day of March, 1890, and the amount claimed by this plaintiff in error upon each one of the counts set forth ip this action was the sum of $56.25, with interest at 12 per cent.</p>

Memorandum.— Error from 'Lyon district court; Charles B. Graves, judge. Action by M. D. Wells & Co. against A. A. Hickox and others. Defendants had judgment, and plaintiffs bring error. The statement of the case, as made by Dennison, J., is as follows ; This is an action brought by the plaintiffs in error, who were plaintiffs in the court below, to recover the balance claimed by them to be due upon a promissory note of $1,959.44.

Memorandum. — Error from Cowley district court; M. G. Troup, judge. Replevin by Neil Wilkie against J. W. Connor, as sheriff. Judgment for plaintiff, and defendant brings error.

<p>Memorandum. — Error from Reno district court; L. Hour, judge. Action by James Worden against J. W. Jones, as sheriff of Reno county, J. C. Holloway, and Davidson & Williams, to enjoin the collection of a certain judgment. Judgment for defendants, and plaintiff brings the case here.</p>

Memorandum. — Error from Cowley district court; M. G. Troup, judge. Action by William S. Houghton against R. G. Lannon and A. V. Wilson, copartners as Lannon & Wilson. The statement of the case, as made by Dennison, J., is as follows : This is an appeal from the decision of the court below, dissolving, vacating and discharging an. attachment which had been procured by the plaintiff, Houghton, and also discharging the levy on said attachment as to the defendant, Wilson.

Memorandum. — Error from Sumner district court; James A. Ray, judge. Action by J. R. Griffith against Albert A. Richards to quiet title. Judgment for plaintiff at the April term, 1890. The defendant brings the case here. The statement of the case, as made by Johnson, P. J., is as follows : This suit was commenced by J. R. Griffith, as plaintiff, against Albert A. Richards, in the district court of Sumner county, Kansas.

Memorandum. — Error from Cowley district court; M. G-. Troup, judge. Action by L. C. Brown against School District No. 41, Cowley county. Judgment for defendant. The plaintiff brings the case to this court.

<p>1. Continuance — Sickness of Attorney. An application for a continuance on account of the sickness of an attorney employed to defend a party against a criminal charge in an indictment is within the sound discretion of the trial court, and a refusal to grant it on that account is not cause for a reversal of the judgment of conviction.</p> <p>2. Juror, Not Disqualified. A person who has heard detailed statements of occurrences in relation to the commission of a criminal offense charged in an indictment, but who has not formed or expressed an opinion in relation to the guilt or innocence of the person charged with the crime or some material fact involved in the charge, is not disqualified to sit as a juror on the trial of such indictment.</p> <p>3. Examination oe Witness — Immaterial Questions and Conclusions. The court should confine a witness in his examination to such facts only as are within his own personal knowledge, and he should not be permitted to give his conclusions arrived at from his observations. Ordinarily, it is error for the court to permit an attorney, in the examination of his own witness, to ask him leading questions as to material matters involved in the issue being tried ; but to permit a witness to state his own conclusions about immaterial matters, or to permit counsel to ask leading questions in relation to matters that are immaterial, is not a reversible error.</p> <p>4. Intoxicating-Liquor Law — Incompetent Dvidence. In the trial of a person charged with selling intoxicating liquors in violation of the prohibitory law, it is not* competent for the court to ■ allow the defendant to prove, by way of defense, what another person had said or done in the place where intoxicating liquors were being sold, or what efforts such person had made to employ the witness to attend bar for him in that place.</p> <p>5. -Prosecution — Correct Instructions. Where the court instructs the jury as follows: “ To authorize a conviction upon all the counts relied upon by the state, the jury must believe from the evidence, beyond a reasonable doubt, that the defendant made all of the sales claimed by the state; and the evidence must prove, beyond a reasonable doubt, either that the defendant made the sales in person, or that they were made for him by his duly-authorized clerk, employee, or agent, and with his knowledge and consent, and the evidence must prove also that the liquors sold were intoxicating. It is the duty of the jury to find a verdict of ‘ not guilty ’ upon every count to which you entertain a reasonable doubt, and a verdict of ‘ guilty ’ as to every count upon which you have no reasonable doubt. Beer and whisky and all fermented liquors are presumed to be intoxicating without proof of their intoxicating qualities, and if you find from the evidence, beyond a reasonable doubt, that the defendant, or his agent acting for him and with his knowledge and consent, sold beer or whisky or other fermented liquors, by whatever name called, you will be authorized in finding that all such liquors were intoxicating, as no evidence has been introduced to the contrary.” Held, That the court instructed the jury correctly on the law.</p>

<p>Memorandum. — Error from Sedgwick district court; C. Reed, judge. Action for damages to fruit in transit by Tlie Bryan Fruit Company against the St. Louis & San Francisco Railway Company. Judgment for plaintiff for $231.74. The defendant brings the case to this court.</p>

Memorandum. — Error from Reno district court; L. Houk, judge. Action by T. B. Totten against the Chicago, Kansas & Western Railroad Company to recover damages. Judgment for plaintiff; defendant brings the case here.

Memorandum. — Error from Sedgwick district court; C. Reed, judge. Action by The Cross Shoe Manufacturing Company against George C. and H. B. Gardner, partners as Gardner Bros. Trial was had, on the motion of the defendant, H. B. Gardner, to vacate order of arrest, and motion allowed. The plaintiff brings the case to this court.

<p>Memorandum. — Error from Kingman district court; S. W. Leslie, judge. Action by Joseph Shultz and W. L. Lenhart against H. P. Morgan to recover a penalty for failure to release a mortgage. A demurrer to plaintiffs’ evidence was sustained, and they bring the case here.</p>

<p>1. Livestock, Ownership of — General Rule — Title TJndivestecl. As a general rule, the owner of the mother is the owner of the offspring born during such ownership. This ownership would continue until divested by some contract, express or implied, between the owner and some other person. A person paying service fees and taxes, and rearing the stock with the consent or knowledge of the owner, does not thereby become vested with the title to the colts or any part thereof.</p> <p>2. -- Evidence of Ownership ■ — Demurrer. Where a person bases the ownership to colts upon evidence that she owned the mother when they were born, the overruling of a demurrer to said evidence is not error. It is competent evidence to go the jury, and judgment should be rendered on them verdict if it is in other respects proper.</p>

Memorandum .— Error from Harvey district court; L. Houk, judge. Action for damages from failure to pay mortgage, by J. E. Ford against W. G. Pearson. Judgment for plaintiff for $236.48. The defendant brings the case to this court.

Memorandum. — Error from Kingman district court; S. W. Leslie, judge. Action for damages by fire brought by William E. Haynes against The Missouri Pacific Railway Company. Judgment for plaintiff for $1,750. The defendant brings the case to this court.

<p>1. Res Judicata — Appearance Necessary. The question, of res adjudícala cannot be raised against a person as to matters decided prior to his appearance in court.</p> <p>2. Homestead — Undivided One-Half of Hotel. Where the wife owns the undivided one-half of a hotel in which she resides with her family, and it is the only home her family has, it is her homestead ; and her motion to discharge an attachment upon the hotel in an action against her husband is properly sustained, and the attaching creditor cannot inquire into the good faith of her husband in deeding the homestead to her.</p>

<p>1. Testimony, Not Expert Evidence. Where a party to an action upon the trial of such action testifies as to the services rendered for which suit is brought, and is then permitted to testify as to the value of such services, held, not error, and that the testimony is not in the nature of an opinion or of expert evidence.</p> <p>2. Judgment — Limit. The trial court can render no greater judgment than the amount found by the verdict of the jury. (Educational Assoc’n v. Hitchcock, 4 Kas. 36.)</p>

Memorandum. — Error from Reno district court; L. Houk, judge. ' Action by B. V. Davidson and C. W. Williams, partners as Davidson & Williams, against J. B. Vincent. Plaintiffs recover judgment, and defendant brings the case liere. The statement of the case, as made by Johnson, P. J., is as follows : • This suit was commenced before a justice of the peace in Hutchinson city, Reno county, Kansas, by Davidson & Williams against John B. Vincent, to recover from him as garnishee.

<p>Mechanic’s Lien, Statement for — Ownership of Property. Where a lien statement filed by a subcontractor alleges that two persons are the owners of the real estate sought to be affected by said lien, and the petition filpd to enforce said lien makes the same allegagation, and seeks to establish a lien upon all the real estate named therein for the total sum claimed to be due from the original contractor for material furnished, and it appears, from an agreed state- ’ ment of facts upon which the case was tried, that the two persons so named were not the sole owners, but that the premises were ■owned by such two persons and another who was not named either in the lien statement filed, or in the petition to enforce the same, held, that under such a state of facts and such pleadings the subcontractor is not entitled to a lien for a proportionate share of his claim upon the undivided interest of the premises named in his statement and petition.</p>

<p>1. Bbiee — Reflections upon Trial Judge. No remarks of counsel derogatory to the dignity of the trial judge will be tolerated by this court. An attorney indulging in this line of argument is liable to have the objectionable brief stricken from the files, or to be disbarred from practicing in this court.</p> <p>2. Contempt — Defective Affidavit. An affidavit for the issuance of an attachment for an alleged constructive contempt in violating an injunction which wholly fails to state that .the defendant is guilty of violating the injunction is fatally defective.</p> <p>3. -Not Cured by Recognizance. Such defect is not cured by the defendant entering into a recognizance to appear and answer to the charge against him, for the reason that there is no charge to answer.</p> <p>4. -Insufficient Affidavit — Judgment, Unauthorized. An affidavit which only states that information has come to the county attorney that a person has committed an offense is hearsay, does not charge the commission of an offense, is not sufficient to satisfy the.court that an offense has been committed, does not authorize the clerk to issue an order of arrest against the person sought to be charged, and is not sufficient to authorize the court to render a judgment against said person.</p>

Memorandum. — Error from Reno district court; L. Houic, judge. Action by The North and South Lumber Company against Plora C. Hegwer, Henry Hegwer, and others, to foreclose a mechanic’s lien. Judgment for defendants. Plaintiff brings the case here.

Memorandum. — Error from Sixmper district court; James A. Ray, judge. Action by J. H. Pickett against George Presbury and J. H. Cager. • Judgment for plaintiff, and defendant Presbury brings the case here.

<p>Memorandum. — Error from Marion district court; Frank Doster, judge. Action in replevin brought by J. P. Slatten, J. P. Bryant, E. A. Dupree, S. Steiner, Henry Schowe, William Conlding, and Joseph Webb, partners as the Bank of Kansas, against J. Konrath and The Chicago, Rock Island & Pacific Railway Company. Judgment for defendants. Plaintiffs bring the case here.</p>

Memorandum. — Error from Reno district court; L. Houk, judge. Action by George H. Rice and Alexander Clark, partners as George H. Rice & Co., against F. G. Brown and J. L. Moore to enforce a lien for materials furnished. Judgment for defendant Brown. Plaintiffs bring the case here. The statement of the case, as made by Johnson, P. J., is as follows.

Memorandum. — Error from Cowley district court; M. G. Troup, judge. Action in replevin by James Jordan against Sampson Johnson and John Johnson. Judgment for defendants. Plaintiff brings the case here.

Memorandum.— Error from Chase district court; Frank Doster, judge. Action by C. C. McDowell against Arch Miller, as administrator of the estate of John McDowell, deceased. A demurrer to plaintiff’s petition was sustained, and he brings the case here.

<p>Memorandum. — Error from Sedgwick court of common pleas; Jacob M. Balderston, judge. Action by Fritz Schnitzler against the Fourth National Bank of Wichita, Kas. Judgment for defendant. Plain tiff brings the case here.</p> <p>The statement of the case, as made by Dennison, J., is as follows :</p> <p>This is an action brought in the court of common pleas of Sedgwick county, Kansas, in which the plaintiff in error filed a verified petition under ¶- 4671 of the General Statutes of 1889, asking the court to vacate a judgment which had been prior thereto rendered against him in favor of this defendant in error, upon the grounds set forth in subdivisions 4 and 7 of ¶"4649, id. The petition filed herein (omitting caption and signature) is as follows :</p> <p>“Said defendant isa corporation duly organized and doing business under the laws of the United States. On the 19th day of July, 1890, said defendant commenced an action in this, the court of common pleas of Sedgwick county, against the plaintiff and others, being action No. 1020 in said court, wherein said Fourth National Bank was plaintiff, and The: Journal Publishing Company, G. W. 0. Jones, S.. Dunkin, and this plaintiff, Fritz Schnitzler, were defendants, upon a promissory note for the sum of $1,000,, executed by said Journal Publishing Company in favor of said Fourth National Bank, and indorsed on the back by this plaintiff as guarantor. On the 10th day of July, 1890, this plaintiff, who then had and now has a place of residence in the city of Wichita, iii said Sedgwick'county, left Ms said residence, Ms family going with him, for a trip to the mountains in the state of Colorado, and left his said residence shut up and locked, with no one therein or thereabout to receive any message or paper which might be left at his said residence during his absence, and in fact left no person in or about said residence. On the 19th day of July, 1890, a summons was issued against this plaintiff in said action No. 1020 in said court, which said summons was on the 22d day of July, 1890, returned by the sheriff of said Sedgwick county, the officer to whom the same was issued, as served by leaving a copy thereof at the usual place of residence of this plaintiff. On the 5th day of August, 1890, this plaintiff returned to his said residence, he and his said family having been continuously absent therefrom from said 10th day of July, 1890, until that date, d uring the whole of which time his said residence was closed and no person at the same. No other service of process was ever made or attempted to be made upon this plaintiff in said action other than as shown by said sheriff’s return, if such was ever made, of which he has no knowledge. On the 5th day of September, 1890, this court, in said action No. 1020, rendered a judgment against this plaintiff by default upon said promissory note for the sum of $1,254 and costs. Of the pendency of said action this plaintiff had no knowledge until after the rendition of said judgment, and until he was called upon to pay the same. At the time that plaintiff left for said state of Colorado as aforesaid he believed and now believes and now avers it to be a fact that said promissory note had long since been satisfied, either by payment or renewal, and he did not know nor did he believe that any claim would be asserted against Mm thereon ; that no claim had been asserted against this plaintiff upon said promissory note, and his business matters were in that condition when he so left for said state of Colorado ; that there were no outstanding obligations upon which he was liable to be sued during his absence.</p> <p>"Plaintiff says that had he had any knowledge of the pendency of said action No. 1020 in this court, before said judgment was rendered as aforesaid, he would have made his defense in said action ; that he has a just and valid defense to the claim asserted against him by said Fourth National Bank upon said promissory note, which he is ready at any time to verify if any opportunity to defend against said claim is given him, and which defense he here states as follows, to wit:</p> <p>“First. For a first defense said Fritz Schnitzler says : That at the maturity of said promissory note so sued upon in said action No. 1020 said promissory note was renewed by a renewal note given said Fourth National Bank by said Journal Publishing Company and others, 'which was taken and accepted by said Fourth National Bank in satisfaction and payment of the note so sued upon, and to which said renewal note said Fritz Schnitzler was no party; that at the maturity of said renewal note, the same was satisfied by a renewal note given therefor and accepted by said Fourth National Bank in satisfaction thereof, to which renewal note said Fritz Schnitzler was no party ; that at the maturity of the renewal note last aforesaid, the same was renewed and satisfied by a promissory note taken by said Fourth National Bank, and accepted by said bank in satisfaction thereof, to which last said renewal note said Fritz Schnitzler was no party, either as maker, indorser, guarantor, security, or otherwise.</p> <p>“Second. For a second and further defense, said Fritz Schnitzler says : That at the maturity of said promissory note, so as aforesaid sued upon in said action No. 1020 in this -court, said maker, the Journal Publishing Company, was perfectly solvent and was solvent for a long time thereafter ; and if said Fourth National Bank had demanded payment of said promissory note fit the maturity thereof, or within a reasonable time thereafter, and attempted to collect the same, said promissory note would have been paid, and could easily have been collected from said Journal Publishing Company, for which company this plaintiff was guarantor only upon said promissory jiote; that the time of payment of the obligation for which said promissory note so as aforesaid was given was extended from time to time by renewals of said Jiote as set forth in said first cause of defense foregoing, to which reference is here made, and the allegations in that behalf in said first cause of defense are hereby made a part of this second cause of defense ; that upon the last of said renewals, the interest was paid by said Journal Company in advance in consideration for such renewal, and the extension of time of payment of the indebtedness evidenced by the promissory note so as aforesaid sued upon, which was from time' to time extended, in consideration of the payment of the interest as aforesaid, as shown by the renewals aforesaid.</p> <p>"Said Fritz Schnitzler says that at the time said action No. 1020 was commenced, said Journal Publishing Company was and now is insolvent, and said obligation cannot be collected from it, and that by reason of the negligence and laches on the part of said the FourtlrNational Bank in delaying the collection of said obligation and the renewals aforesaid, this plaintiff is discharged from all liability on said promissory note. And further, said Fritz Schnitzler says an execution has been issued upon said judgment in said action No. 1020 in this court, and said Fourth National Bank is proceeding to enforce the payment of -said judgment upon said execution.</p> <p>"Wherefore, plaintiff prays that said Fourth National Bank may be enjoined from proceeding upon said execution upon said judgment until the final determination of this action, and that said judgment in said action No. 1020, as to this plaintiff may be set aside, and this plaintiff permitted to make his defense therein, and for such other and further relief as this plaintiff may be entitled to.”</p> <p>To which petition the defendant in error filed the following answer (omitting caption and signature) :</p> <p>"Now comes the defendant in the above-entitled action, and for its answer to plaintiff’s petition says : That it admits its incorporation and organization as alleged. It admits that on the 19th day of July, A. D. 1890, it commenced the action against the plaintiff in this action. It also admits and alleges the fact to be that on the 5th day of September, 1890, at the September term of this court, it obtained a judgment against this plaintiff in the sum of $1,254 and costs of the action. This defendant alleges that this court had jurisdiction of the subject-matter of the action and of the parties defendant thereto; and further alleges that service of summons was duly and legally made upon the said Fritz Schnitzler, by leaving a ■copy of said summons at his usual place of residence in the manner and time as by law required. This ■defendant denies each and every allegation contained in plaintiff’s petition, except such as are hereinbefore admitted. Wherefore defendant demands j udgment. ’ ’</p> <p>Upon a trial of the issues raised by the pleadings, the defendant in error objected to the introduction of any testimony under said petition, for the reason that it does not state facts or contain allegations sufficient to constitute a cause of action in favor of the plaintiff and against the defendant; which said objection was by the court overruled. The plaintiff in error introduced his testimony and rested, and the defendant in error introduced no testimony, and submitted the cause on the testimony of the plaintiff. AVhereupon the court rendered judgment for the defendant. The plaintiff brings the case here for review.</p>

<p>1. Pkohibitory-Liquob Law — Evidence as to Clerk, Agent or Employee. Where a defendant is charged with the unlawful sale of intoxicating liquor, and with maintaining a common nuisance by keeping a place where liquors are unlawfully sold, and the evidence shows that certain sales were made at the defendant’s place of business by another person and in the absence of the defendant, there must be sufficient competent evidence to establish the fact that such sales were made by some clerk, agent or employee of the defendant, with the knowledge or consent of the defendant, in order to sustain a conviction.</p> <p>2. - Statements by Jurors — Influence upon Verdict. Where unlawful sales of liquor are made in the place of business of a defendant, who is charged with making the same, but such sales were made in the absence of the defendant, it becomes a material fact, which must be established by the state beyond a reasonable doubt, whether such sales were made by some clerk, agent or employee of the defendant, and with the knowledge or consent of the defendant, and in determining such fact the jury-must be governed by the evidence given in the case, and have no right to consider the personal knowledge of certain of the jurors upon that point; and where the evidence in the case is slight as to the fact that such sales were made by an employee of the defendant, or with his knowledge or consent, and some of the jurors, in considering their verdict, state in the presence of all of the jury that the person who made the sales, or either or any of them, was an employee of the defendant at the time of making such sales and had been for some time, held, that it cannot be said that such statements upon the part of the jurors did not influence the verdict of the jury.</p>

Memorandum. — Error from Cowley district court; M. G-. Tr.oup, judge. Action by O. H. Fargo, J. Benliam, 0. E. Fargo, and S. M. Fargo, copartners, doing business under the firm name and style of C. H. Fargo & Co., against John T. Hickman and John G. Woods. Judgment for plaintiffs. Defendants bring the case here.

Memorandum. — Error from Hamilton district court; A. J. Abbott, judge. Action in replevin by Sallie H. Carr against A. M. Huffman, as sberiff. Judgment for defendant. The plaintiff brings the case to this court.

<p>1. Evidence — Complex Fact. It is generally incompetent to prove a complex fact by a mere assertion of the fact itself, when such fact is the principal ground of contention; but when all the simple, primary and elementary facts necessary to establish a complex fact are proven, it is immaterial error to admit proof of said complex fact.</p> <p>2. -Ownership of Land not Proof of Ownership of Wheat. In an action to recover the possession of wheat taken from the bin, it is incompetent to prove ownership of the land on which the bin is located or the wheat was raised to establish the ownership of the wheat. The ownership of the wheat in controversy could not be established by evidence as to the ownership of the land.</p> <p>3. Petition, Amendment of— Stipulation as to Amount of Recovery. An agreement between the parties to the suit as to the amount of recovery is sufficient to authorize the amendment of the pleadings to correspond with said agreement, without costs; and a judgment for said amount will be upheld without such amendment having in fact been made. (Mitchell v. Milhoan, 11 Kas. 617.)</p>

<p>Memorandum. — Error from Finney district court; A. J. Abbott, judge. Action in replevin brought by Angeline S. Pope against P. M. Bowzer. Judgment for defendant. Plaintiff brings the case here.</p>

Memorandum. — Error from Ford district court; A. J. Abbott, judge. Action for money overpaid on contract by D. D. Streeter and W. C. Bradbury against M. Westenhaver. Judgment for defendant. Plaintiffs bring the case to this court.

Memorandum. — Error from Kearny district court; A. J. Abbott, judge. Action on contract by A. A. G. Stayton against The Western Irrigrating Company. Judgment for plaintiff. The defendant brings the case to this court.

<p>Memorandum. — Appeal from Finney district court; A. J. Abbott, judge. Prosecution by The State against William H. Scott for violation of the nuisance clause of the prohibitory-liquor law. From a conviction the defendant appeals.</p>

<p>1. Contract — Evidence. Where the evidence shows the making of a contract by a civil engineer with an irrigating company, a corporation, to perform work as an engineer in and about the construction of an irrigating canal, the engineer to receive $100 per month as compensation, and the performance of work under such contract and the length of time worked, and the nonpayment of the contract-price, and the jury has returned a verdict thereon in favor of the plaintiff for the amount proven, and the court has rendered a judgment thereon in accordance with the verdict, held, that the evidence was sufficient to support the verdict and warranted the rendition of the judgment thereon.</p> <p>2. - Petition — Allegation of Authority — Evidence. Where the petition alleges the making of a contract by a plaintiff on his own behalf and a corporation by P., its vice-president and superintendent, who was at the time superintending the construction of an irrigating canal for the corporation, and the corporation does not deny, under oath, the authority of P., the vice-president and superintendent, to make such contract, the authority is admitted, and it does not require evidence to prove the authority of the vice-president and superintendent to bind the corporation, and the conversation and statements between the plaintiff and P. during the time of making the contract and in the performance of work under such contract are competent evidence.</p> <p>3. Irrigating Canal — Evidence of Authority. Where the evidence shows that J. was present, giving directions and instructions in the construction of an irrigating canal, and so continued in the superintendency with P., the vice-president and superintendent, for a period of about four months, and was permitted by said corporation to appear and give directions and instructions, and there was no objection at any time to his giving directions, and no objection was made at any time by the corporation when his directions were followed, but they were, from time to time, approved by the officers of the corporation, and J. furnished' all the funds to pay the parties engaged in and about the construction of such canal, held, that the statements of J., made while giving instructions upon the work as it progressed; were competent evidence against the corporation without first proving that J. was the officer of the corporation.</p> <p>4. -Civil Engineer — Lien for Services. A civil engineer who makes field-notes, maps, charts and drawings while employed by a corporation in and about the construction of an irrigating canal, on books and papers furnished by the corporation, is entitled to a lien on such field-notes, maps, charts and drawings, and has a, right to retain possession of the same until he shall be paid for making the same.</p>

Memorandum. — Error from Finney district court; A. J. Abbott, judge. Action brought by T. M. Dickey against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for loss of services, etc., of plaintiff’s wife. Judgment for plaintiff for $1,729, and costs.

Memorandum. — Error from Barton district court; J. H. Bailey, judge. Action for damages by fire by J. F. Huitt against the Atchison, Topeka & Santa Fe Railroad Company. Judgment for plaintiff; the defendant brings the case to this court.

<p>1. Pleading and' Practice — Joinder of Parties. Where parties are united in interest they must be joined as plaintiffs or defendants, but persons having an interest in the subject of the action and obtaining the relief demanded, may be joined as plaintiffs. (Gen. -Stat. of 1889, ¶ ¶ 1112, 1111.)</p> <p>2. - Cause of Action — not Divisible. A single cause of action cannot be divided so as to subject the defendant to the annoyance and expense of several suits; it must be litigated in a single suit.</p> <p>3. Railroad — Fire from Engine — Evidence. Where a witness testified that he knows the value of the barn; that he and another had built it less than two years prior to its burning; that he had built several buildings; that he could look over a bam and tell something near its value ; and where his testimony shows that he has an intimate knowledge of all the different parts of the barn in controversy, his evidence was properly admitted to the jury for them to weigh under proper instructions.</p> <p>1. -Attorney's Fee — -Evidence — Judgment. When the petition asks for an attorney’s fee, as provided for in ¶ 1322 of the General Statutes of 1889, and for a judgment in favor of the owners of the property burned, and that other parties be subrogated to the rights of said owners to the amount of its claim, it is proper to admit evidence as to what is a reasonable attorney’s fee, and to include the amount found by the jury to be a reasonable attorney’s fee in the judgment rendered in favor of said owners.</p> <p>5. -Fire from Engine — Measure of Damages. The true measure of damages for negligently burning a barn is the value of the bam at the time of the burning thereof.</p> <p>6. -Jury Findings — Negligence. If the jury believed that the weather was dry and a strong wind blowing, and that the engineer used an unusual and unnecessary amount of steam in starting out of the city, by reason of which the fire was forced out of the smoke-stack, and without which the fire would not have occurred, they were justified in finding that the engineer was not careful, and that he mismanaged his engine.</p> <p>7. Pleading and Practice — Taxation of Costs on Continuance.. The taxation of costs upon granting a continuance rests in the sound discretion of the trial court, but where there is a manifest abuse of such discretion, this court will make such a ruling as it thinks the trial court should have made.</p>

<p>1. Petition, Held Sufficient. The petition in this ease examined, and held to be sufficient against a general demurrer.</p> <p>2. Pleadings, Erroneous Judgment on. Where the record in a ease discloses that the separate answers of two defendants each presented an issue of fact, a ruling of the court directing the jury to render a verdict for the plaintiff upon the pleadings, and the action of the court in entering judgment for the plaintiff upon a verdict so rendered, is error where it appears from the record that the only ground for such verdict and judgment was the state of the pleadings in the case.</p>